One of the top, if not the top, criminal law blogs in the country, authored by Scott Greenfield in New York, Simple Justice, recently featured this blog in a post titled, “New Blood in the Blogosphere,” which can be found here. Thanks, Scott. I would encourage anyone interested in criminal law to check it out, as I do regularly.
From the Bluefield Daily Telegraph today:
Mario Goodson, 18, appeared Monday for a preliminary hearing before Magistrate Rick Fowler. Fowler found probable cause in Goodson’s case and bound him over to the Mercer County Grand Jury.
Both Goodson and Kenneth Dwayne Eaves, 19, of Bluefield are facing charges of conspiracy and first-degree murder in the Dec. 14, 2007 death of 28-year-old William Jerome Flack of Bluefield. Detective L.B. Murphy of the Mercer County Sheriff’s Department testified Feb. 8 that witnesses allegedly heard Eaves order a second person, Goodson, to shoot Flack.
Wow, that is a big surprise. Many West Virginians do not realize that if they are arrested on a felony, they are entitled to a preliminary hearing in front of a supposedly neutral magistrate to establish whether the police have probable cause to hold you in jail (or on bond) for the charges. They also don’t realize that this process is for the most part a farce, a formality. Preliminary hearings in West Virginia are a joke. The magistrates for the most part are not lawyers and have no legal training on what is and what is not probable cause. They, for the most part, have no idea what is and what is not admissible under the West Virginia Rules of Evidence (of course, there are exceptions).
The West Virginia Rules of Criminal Procedure allow for “relaxed hearsay” in preliminary hearings. This means that the investigating officer can come in and testify to some hearsay if there is a substantial basis for believing that (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. Therein lies the problem. Many magistrates will just allow the investigating officer to come in and testify to anything and everything they were told throughout their investigation. Then, the magistrate will say, “well, probable cause is a very low burden, and they have met the burden… I find there is probable cause.”
For instance, I had a client who was charged with a absolutely ludicrous felony charge in Greenbrier County. His preliminary hearing was held by a magistrate in Greenbrier County. The State subpoenaed three witnesses: the investigating officer, and two very disreputable convicted felons whom had been caught red-handed and pointed the finger at my client to try and get a plea deal. They appeared and were waiting in the waiting room as the hearing began. The State called the officer first, and he proceeded to testify to almost entirely hearsay testimony - basically everything the other two idiots in the waiting room would have testified to. I objected to hearsay, reciting the above relaxed hearsay rule, but the magistrate basically said that all hearsay is allowed in preliminary hearings. Thus, the magistrate allowed the hearsay testimony despite the fact that the two idiots were in the next room, so the primary source of the evidence could have testified. Furthermore, they were extremely incredible. One of them was notorious in the county for being a career criminal, having spider web tattoos all the way up his neck. The lying officer however, grinned and testified that he thought the man was credible. I later told this to the Prosecuting Attorney, and he laughed and joked that everyone knew that this was the most incredible man in the county, perhaps the state.
As it turns out, when it came my turn to call witnesses, I obviously tried to call the two idiots in the waiting room, so that my client would at least have the opportunity to confront his witnesses. Believe it or not, the assistant prosecutor, on his first week of the job, objected on the grounds that they may be charging one of them with a crime and one may testify against the other, and that therefore there was a “use immunity issue.” I responded that it was irrelevant, and was the prosecutor’s problem and had no bearing on the hearing. The magistrate however, got really, really worried that she was going to make someone mad in the prosecutor’s office and decided not to allow me to call any of the witnesses that had been subpoenaed to the hearing and were waiting in the next room. Then, that was it: she found probable cause and we were not allowed to call any witnesses. This was an absolute disgrace to our criminal justice system. Imagine if it were your son or daughter that was treated like this.
Fortunately this client was able to make bail, as his case was never even brought to the grand jury. If it were some poor sap who didn’t have any money, he would still be sitting in jail thanks to this meaningless system of magistrates conducting preliminary hearings.
By the way, these same non-lawyer judges are the ones who make decisions on whether or not the police have probable cause to be issued warrants to search your home - or to arrest you. Yes, it’s very scary and very unjust.
Read the full article here.
- John H. Bryan, West Virginia Attorney.
Part of the reason that I have not posted lately is because I was preparing for a jury trial in Summers County, West Virginia, in a third-degree sexual assault case - basically a “he said - she said” situation. I am pleased to note that the trial went extremely well. It lasted for about a day and a half. After the jury deliberated for about an hour and twenty minutes on Friday, they came back with a unanimous verdict of not guilty.
It is interesting to note that the investigating officer in the case testified on the witness stand during cross examination that trace evidence disappears after 3 weeks. I asked him if he ever watches “Cold Case Files”…. He replied that he did not. I have a feeling however that the jurors had seen it.
- John H. Bryan, West Virginia Attorney.
Yesterday, Patricia Brown was sentenced to 40 years, which is the maximum sentence for 2nd degree murder. Following a jury trial, she was acquitted of first degree murder. At the hearing, two members of the victim’s family spoke. Then Patricia briefly spoke on her own behalf, still proclaiming her innocence.
Usually, when the family of the victim speaks at the sentencing, and when the defendant still proclaims her innocence, a greater sentence will be imposed than in your run-of-the-mill sentencing hearing. In this case, myself and Tom White, as her defense attorneys, were fully prepared for her to receive the maximum sentence.
However, 40 years is much better than life without mercy. In her case, she will come up for parole in 10 years - actually 9 years since she has already spent one year in jail. - John H. Bryan, West Virginia criminal defense attorney.
On December 6, 2006, a stabbing death took place at 417 Temple Street in Hinton, West Virginia. Three people were involved in an altercation in a home, one of them was stabbed. The two survivors both blamed each other. This set the foundation for a trial that would last nearly two weeks in December 2007.
Lewisburg attorney Tom White, as well as myself, were appointed by the court to represent Mrs. Brown. For over a year, we prepared the case for trial. We knew that it would be difficult for her to get a fair trial in Summers County, West Virginia, so we filed a motion for change of venue. The motion consisted of twenty-six pages of negative and biased media accounts that had already been injected into the minds of potential Summers County jurors. However, the motion was denied and we went to trial on December 11, 2007.
The end result was that Patricia Brown was acquitted of first degree murder, but was found guilty of second degree murder. Of interest to this blog however, is the conduct of the West Virginia State Police Forensics Lab during the investigation of Mrs. Brown and during the trial itself. What most West Virginians do not know is that the State of West Virginia does not have a separate and independent forensics lab to perform the DNA and other testing in criminal cases, as does almost all other states. This has presented serious problems in the past, and it continues to pose a problem. I will detail some of these problems in my next post.
Email Me jhb@johnbryanlaw.com
“Protecting the lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.” - Stuart Kinard.
